Shri Shyam Babu vs Govt. of NCT of Delhi

Madan B. Lokur, J.—The Appellant is aggrieved by an order dated 5th September, 2006 passed by a learned Single Judge of this Court in WP(C) No. 9824/2003 and WP(C) No. 9830/2003.

The Appellant was working as a daily wager (Beldar) with the Respondent from sometime in October, 1982. On 12th March, 1984 he made an application with the Respondent demanding regularization and a regular pay scale.

Since no immediate action was taken on the request made by the Appellant, he made an application before the Conciliation Officer on 4th April, 1984. While the matter was pending before the Conciliation Officer, according to the Appellant, his services were terminated with effect from 1st August, 1984 but, according to the Respondent, the Appellant abandoned his work with effect from 1st June 1984.

Subsequently, on 15th December, 1984 the Appellant made a complaint u/s 33A of the Industrial Disputes Act, 1947 alleging that he was not being allowed to work.

On these broad facts, a reference was made by the appropriate Government to the Industrial Tribunal in respect of two different claims of the Petitioner. The first being with respect to his claim of regularization and second being with respect to his termination from service.

We are not concerned with the claim made by the Appellant for regularization since a statement is now made by learned Counsel for the Appellant that he does not press his claim for regularization, in view of Secretary, Secretary, State of Karnataka and Others Vs. Umadevi and Others, .

The relevant reference made to the Industrial Tribunal reads as follows:

Whether the termination of services of Shri Shyam Babu is illegal/unjustified. If so what directions are necessary in this respect.

When the matter was taken up for consideration by the Industrial Tribunal, the following issues were framed on 8th June, 1987 on the basis of the pleadings of the parties:

Does this case not come within the purview of Industrial Disputes Act.

As per the terms of reference.

The first issue need not detain us since no submissions were made by either of the parties in this regard.

In so far as the alleged termination of services of the Appellant is concerned, the Industrial Tribunal came to the conclusion that his services were illegally and unjustifiably terminated. It was held that the Appellant is entitled to reinstatement with continuity of service and back wages. An appropriate award in this regard was passed by the Industrial Tribunal on 27th May, 2003.

Feeling aggrieved by the award of the Industrial Tribunal, the Respondent filed a writ petition in this Court which came to be allowed by the impugned judgment and order dated 5th September, 2006.

It is submitted by learned Counsel for the Appellant that the termination of services of the Appellant was in complete violation of the provisions of Section 25F of the Act. According to learned Counsel, no notice was given to the Appellant before his services were terminated nor was he paid any wages for the notice period. On the other hand, learned Counsel for the Respondent has contended that the workman has abandoned his services with effect from 1st June 1984 and in spite of repeated requests to rejoin duties, the Appellant had failed to do so.

As noted above, the issue of abandonment was not even framed by the Industrial Tribunal. In our opinion, therefore, it is not open for the Respondent to contend that the Appellant had abandoned his services.

In so far as the issue of termination is concerned, there is nothing on record to suggest that the Appellant was given any retrenchment notice nor was he paid anything in lieu of the notice period as contemplated u/s 25F of the Act. Under these circumstances, we are of the opinion that the Industrial Tribunal was correct in holding that the services of the Appellant have been illegally and unjustifiably terminated contrary to the provisions of Section 25F of the Act.

On the question of relief, we find that the Appellant is only a daily wager and he has worked with the Respondent for less than two years. Even if it is concluded that his services were illegally terminated on 1st August, 1984 the Appellant has no right to retain the post being a daily wager.

Learned Counsel for the Respondent informs us that it is not possible to reinstate the Appellant because of the policy of the Government not to employ persons except through a contractor. The Appellant is also not keen to be employed with the Respondent through a contractor. That being the situation, we have no option but to come to the conclusion that the Appellant cannot be reinstated.

In this view of the matter, the only relief that can be granted to the Appellant is monetary compensation in lieu of reinstatement.

Our attention has been drawn by learned Counsel to a recent decision of the Supreme Court in Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Another, . In that case the Supreme Court awarded compensation of Rs. 50,000/- to a daily wager in lieu of reinstatement. In that case, the daily wager had worked from 1st September 1995 to 18th July, 1996 which is less than a year. In the present case, the Appellant has worked for less than two years and, therefore, we are of the opinion that the interest of justice would be met if he is granted compensation of Rs. 1 lakh in lieu of reinstatement.

The Respondent is directed to make payment of Rs. 1 lakh to the Appellant within six weeks from today failing which the amount will carry interest at the rate of 9% p.a.

The appeal is disposed of in the above terms.